Federalism and rights: An exchange of views

First of all, I have no problem with same sex marriage or the recent Supreme Court decision regarding D.O.M.A.

What I found to be really troublesome about your column (actually, an editorial), however, was the statement: “And, while it’s wrong that legal rights should vary from state to state…”

This statement demonstrates a complete disregard for the principle that the U.S. is a REPUBLIC. We are not a singularity, but rather a confederation of individual states. This was the concept embraced not only by the Founding Fathers, but also, and more importantly, by the ratifiers of our Constitution.

Individual states have, today, different laws relative to motor vehicle operation, abortion, breach of contract, marriage and divorce, to name just a very few. And this is the way it’s supposed to be in a REPUBLIC.

The concept of state’s autonomy, in certain areas, is enshrined into law in the 10th Amendment to the U.S. Constitution which reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

There is, perhaps, no single sentence in the entire Constitution. with greater clarity and less ambiguity than the language of this Amendment. And yet, Rick Holmes believes that it is wrong for individual states to have their own laws???

Could you possibly explain?

Regards, Paul E. Landry

Hi Paul,

A quick answer: The genius and paradox in the U.S. is in its motto: Out of many, one. So yes, it is a confederation of states. It’s also one nation. As I noted in my column Sunday, the Preamble starts with “We, the People,” not “We, the States.” It’s a union, a republic and a confederation at at once. Tastes great and less filling too.

As that applies to rights, some rights cannot vary from state to state, as they are enshrined in the Bill of Rights. Others, as you say, are granted at the state level. The state can determine the right to drive, but it cannot deny the right to vote, or freedom of religion, etc. In Loving v. Virginia, the Supreme Court declared laws against inter-racial marriage unconstitutional, because the 14th amendment prohibits all states from denying rights based on race. Since the Constitution doesn’t prohibit discrimination based on sexual orientation, the court was correct, in my view, in not imposing a right to same-sex marriage on the states.

That doesn’t make the statement you quoted incorrect. Not to be legalistic, but there’s a difference between “wrong” and “illegal”. I happen to believe it’s wrong to deny same-sex couples the right to marry in, say, Florida. And on a matter as fundamental as marriage, the variation in rights between states is troubling to a lot of people. That doesn’t mean it’s unconstitutional, at least not the way this court sees it. A future court might decide otherwise and impose same-sex marriage on all states, but that’s a decision we can argue about then.

Rick

Rick Holmes

A letter from a longtime reader, and my response:

Hi Rick!

First of all, I have no problem with same sex marriage or the recent Supreme Court decision regarding D.O.M.A.

What I found to be really troublesome about your column (actually, an editorial), however, was the statement: “And, while it’s wrong that legal rights should vary from state to state…”

This statement demonstrates a complete disregard for the principle that the U.S. is a REPUBLIC. We are not a singularity, but rather a confederation of individual states. This was the concept embraced not only by the Founding Fathers, but also, and more importantly, by the ratifiers of our Constitution.

Individual states have, today, different laws relative to motor vehicle operation, abortion, breach of contract, marriage and divorce, to name just a very few. And this is the way it’s supposed to be in a REPUBLIC.

The concept of state’s autonomy, in certain areas, is enshrined into law in the 10th Amendment to the U.S. Constitution which reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

There is, perhaps, no single sentence in the entire Constitution. with greater clarity and less ambiguity than the language of this Amendment. And yet, Rick Holmes believes that it is wrong for individual states to have their own laws???

Could you possibly explain?

Regards, Paul E. Landry

Hi Paul,

A quick answer: The genius and paradox in the U.S. is in its motto: Out of many, one. So yes, it is a confederation of states. It’s also one nation. As I noted in my column Sunday, the Preamble starts with “We, the People,” not “We, the States.” It’s a union, a republic and a confederation at at once. Tastes great and less filling too.

As that applies to rights, some rights cannot vary from state to state, as they are enshrined in the Bill of Rights. Others, as you say, are granted at the state level. The state can determine the right to drive, but it cannot deny the right to vote, or freedom of religion, etc. In Loving v. Virginia, the Supreme Court declared laws against inter-racial marriage unconstitutional, because the 14th amendment prohibits all states from denying rights based on race. Since the Constitution doesn’t prohibit discrimination based on sexual orientation, the court was correct, in my view, in not imposing a right to same-sex marriage on the states.

That doesn’t make the statement you quoted incorrect. Not to be legalistic, but there’s a difference between “wrong” and “illegal”. I happen to believe it’s wrong to deny same-sex couples the right to marry in, say, Florida. And on a matter as fundamental as marriage, the variation in rights between states is troubling to a lot of people. That doesn’t mean it’s unconstitutional, at least not the way this court sees it. A future court might decide otherwise and impose same-sex marriage on all states, but that’s a decision we can argue about then.